Due Process for Immigrants, is Due Process for all Americans
This blog post was contributed by AILA Immediate Past President Charles H. Kuck:
Attorney General Holder took a step towards restoring a semblance of constitutional protection to all Americans last week, when he overturned the decision of Attorney General Mukasey in Matter of Compean, an Immigration Court matter pertaining to ineffective assistance to counsel. You ask, “how does this apply to all Americans?” The answer is quite simple. When a government begins to argue that due process and basic constitutional protections do NOT apply to a portion of the population living in the United States, it is clear that it could easily be extended to another portion of the populace.
The erosion of the rights of immigrants began five years before the tragic events of September 11, when Congress passed in 1996 a horrific immigration law that eviscerated the ability of immigrants to seek the protection of the United States, and severely limited their rights if brought before an immigration court. Attorney General Mukasey, on his last day as Attorney General under President Bush, issued a decision in a previously undiscussed immigration court case, Matter of Compean, in which he declared that there was no due process right to effective assistance of counsel for immigrants in Immigration Court.
Immigration court is a strange creature in the context of the legal system. There are effectively no rules of evidence, no discovery, and under of Matter of Compean, no right to effective assistance of counsel. In the Immigration Court system, the Department of Justice makes the final decision on the outcome of each case, not the independent judiciary. The Attorney General can, and sometimes does, simply reverse the decision of the lower immigration courts, to suit his or her political agenda.
What was Attorney General Mukasey’s agenda as it pertains to immigrants is still unclear (at least to some), however, what is evident is the simple fact that he believed that the Constitution and its protections does not extend to immigrants. That is why the American Immigration Lawyers Association (AILA) welcomed the restoration of due process in the Immigration Court system when Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey in Matter of Compean. This decision by Attorney General Holder did not come as a surprise. He had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning. And, while Attorney General Holder did not issue a substantive decision outlining his reasoning (he simply noted in the reversal that the constitutional issues relied on by Attorney General Mukasey were not necessary to the decision in the case), AILA on behalf of all of our members’ immigrant clients, is grateful for this restoration of a basic constitutional principle—Due Process, in the immigration court system.
It is refreshing to see an Administration live up to its word. The restoration of the prior standard for claiming ineffective representation in immigration court proceedings is a welcome sign that the Obama administration understands that the rights that apply to the least of us, apply to all of us. By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures. Attorney General Holder’s action, along with the other positive signs from the Administration, signal that a restoration of our most sacred principles of justice has begun.
Now this does not mean that we have come a long way towards fixing what is a tragically broken immigration court system. The reality is that as long as immigrants remain unrepresented in immigration court (more than 80% of all detained immigrants are presented before an immigration judge without counsel), injustice will occur. As long as there are quotas set for immigration judges to process a certain number of cases each day, week, month and year, injustice will occur. As long as a 15 member Board of Immigration Appeals reviews more than 35,000 cases a year, injustice will occur. As long as relief from removal remains elusive for long term residents of the United States who have U.S. citizen parents, spouses and children, and who have committed no crime, injustice will occur. We must continue to work to overcome the legacy of almost 14 years of ill-thought out and incredibly ineffective immigration laws.
So, while we welcome the news that Attorney General Holder has quickly moved to restore a semblance of due process for immigrants, the reality remains that the system is still broken, injustice occurs, and our immigration court system does not serve America’s best interests.